Kerala High Court
Simhanada Bhagavathy Devaswom vs Padmanabhan on 21 July, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934
OP(C).NO. 95 OF 2013 (O)
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I.A. NO.2554 OF 2012 IN O.S NO.94 OF 2012,
PRINCIPAL MUNSIFF'S COURT, PALAKKAD
PETITIONER(S):
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SIMHANADA BHAGAVATHY DEVASWOM, AGED 63 YEARS
BY ITS MANAGING COMMITTEE PRESIDENT M.A.KRISHNAJI
S/O.T.K.SUBRAMANYA IYER
GEETHA SADAN
THAREKKADU VILLAGE
PALAKKAD-678001
(THE PREVIOUS PRESIDENT WHOSE NAME FINDS A
PLACE IN EXT.P3, NAMELY, T.G.NARAYANASWAMY,
RESIGNED ON 5.7.2012. A NEW MANAGING
COMMITTEE HEADED BY M.A.KRISHNAJI AS ITS
PRESIDENT WAS ELECTED ON 15.7.2012 AND THE
SAID ELECTION WAS APPROVED BY THE
ASSISTANT COMMISSIONER, MALABAR DEVASWOM
BOARD, PALAKKAD AS PER HIS PROCEEDINGS
NO.A12/3446/2012/MDB DATED 21.7.2012. HENCE
THE PETITIONER IS REPRESENTED BY ITS PRESENT
PRESIDENT OF THE NEWLY ELECTED MANAGING
COMMITTEE, NAMELY, M.A.KRISHNAJI)
BY SENIOR ADVOCATE SHRI S.V.BALAKRISHNA IYER
BY ADVOCATES SRI.P.B.KRISHNAN
SMT.GEETHA P.MENON
SRI.N.AJITH
SRI.P.B.SUBRAMANYAN
O.P(C)NO.95 OF 2013
RESPONDENT(S):
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1. PADMANABHAN
S/O.GOPALAN NAIR
RESIDING AT H.NO.9/677
COLLEGE ROAD
PUTHUR AMSOM
PALAKKAD TALUK
PIN 678001.
2. SARATHI
S/O.GOPALAN NAIR
RESIDING AT H.NO.9/677
COLLEGE ROAD
PUTHUR AMSOM
PALAKKAD TALUK
PIN 678001.
3. VENUGOPALAN
S/O.GOPALAN NAIR
RESIDING AT H.NO.9/677
COLLEGE ROAD
PUTHUR AMSOM
PALAKKAD TALUK
PIN 678001.
4. JAYA BHARATHI
D/O.GOPALAN NAIR
RESIDING AT H.NO.9/677
COLLEGE ROAD
PUTHUR AMSOM
PALAKKAD TALUK
PIN 678001.
O.P(C)NO.95 OF 2013
5. MEENAKSHIKUTTY
D/O.GOPALAN NAIR
RESIDING AT H.NO.9/677
COLLEGE ROAD
PUTHUR AMSOM
PALAKKAD TALUK
PIN 678001.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(C)NO.95 OF 2013
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1 DATED 31.10.202, TRUE COPY OF I.A. NO.2554 OF
2012 IN O.S. NO.94 OF 2012 ON THE FILE OF THE MUNSIFF'S COURT, PALAKKAD
FILED BY THE RESPONDENTS.
EXHIBIT P2 DATED 7.11.2012, TRUE COPY OF OBJECTION TO
I.A. NO.2554 OF 2012 IN O.S. NO.94 OF 2012 FILED BY THE PETITIONER.
EXHIBIT P3 DATED 3.12.2012, TRUE COPY OF THE ORDER IN I.A.
NO.2554 OF 2012 IN O.S. NO.2554 OF 2012 IN O.S. NO.94 OF 2012.
EXHIBIT P4 DATED 17.7.2012, TRUE COPY OF WRITTEN
STATEMENT IN O.S. NO.94 OF 2012 OF THE MUNSIFF'S COURT, PALAKKAD.
RESPONDENT(S)' EXHIBITS: NIL
TRUE COPY
P.S. TO JUDGE
THOMAS P.JOSEPH, J.
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O.P(C) No.95 of 2013
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Dated this the 09th day of January, 2013
J U D G M E N T
Exhibit P3, order dated 03.12.2012 on I.A. No.2554 of 2012 in O.S. No.94 of 2012 of the Principal Munsiff's Court, Palakkad referring the claim of kudikidappu raised by the respondents to the Land Tribunal (for short, "the Tribunal) for a finding under Section 125(3) of the Kerala Land Reforms Act (for short, "the KLR Act") is under challenge.
2. The petitioner originally filed R.C.P. No.92 of 1979 for eviction of the respondents under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, "the Act 2 of 1965"). The claim of kudikidappu raised by the respondents was referred to the Tribunal under Sec.125(3) of the KLR Act. The Tribunal entered a finding that the respondents are not kudikidapukars. As the Government had by then exempted buildings of the petitioner from the operation of Act 2 of 1965, the rent control petition was dismissed not pressed. Thereafter, the petitioner filed O.S. No.94 of 2012 for eviction of the respondents. The respondents again raised a claim of kudikidappu in their O.P(C) No.95 of 2013 -: 2 :- written statement. They filed Ext.P1, application - I.A. No.2554 of 2012 to refer the question to the Tribunal for a finding. The petitioner preferred Ext.P2, objection. The learned Munsiff allowed Ext.P1, application by Ext.P3, order for the reason that there was an earlier reference of the question and that it is appropriate that the question is referred to the Tribunal for a finding.
3. The learned Senior Advocate for the petitioner, placing reliance on the decisions in K.S.H.W. Co-op. Society Ltd. v. Vadakke Madom Brahmaswom (1996 [1] KLT 282) and Thomas Antony v. Varkey (2000 [1] KLT
12) contended that it is not as if whenever a claim of kudikidappu is 'raised' or even 'arises', a reference is required. According to the learned Senior Advocate the question must reasonably and genuinely arise for a decision and then alone the question need be referred to the Tribunal. It is within the power of the civil court to decide whether the question of kudikidappu genuinely and reasonably arises for a decision. No such satisfaction is arrived at by the learned Munsiff before passing Ext.P3, order. The learned Senior Advocate pointed out that in the earlier reference in R.C.P. No.92 of 1979, the Tribunal had entered a finding that the O.P(C) No.95 of 2013 -: 3 :- respondents are not kudikidappukars in the schedule building.
4. No doubt, reference of the question arises only if it genuinely and reasonable arises for a decision. Whether the question generally and reasonably arises for a decision shall depend on the facts and circumstances of each case. Though the finding entered by the Tribunal on the reference in R.C.P. No.92 of 1979 was against the respondents, that finding has no independent stand as held in the decisions in Mathevan Padmanabhan v. Parameswaran Thambi ([1995] Suppl. 1 SCC 479), Reghuram Rao v. Pathimabi (1997 [2] KLJ 234) and Padmanabhan v. Tharekkad Simhanatha Bhagavathy Devaswom (2012 [1] KLT 1), the latter being between the parties to this proceeding. The finding goes with the ultimate decision of the civil/rent control court. In this case, R.C.P. No.92 of 1979 was dismissed as not pressed. Therefore the finding entered by the Tribunal in the reference in that case does not exist.
5. Then the question is whether the claim of kudikidappu genuinely and reasonably arises for a reference? It is not disputed that in R.C.P. No.92 of 1979 the respondents wanted a reference O.P(C) No.95 of 2013 -: 4 :- of their claim of kudikidappu, that reference was allowed and the Tribunal entered a finding. The petitioner has suffered an order of reference in R.C.P. No.92 of 1979 obviously because the circumstances were such that a reference was required. In such a situation, the petitioner cannot turn round and say that no reference is required in the present proceeding. The materials collected by the Tribunal to answer the reference in R.C.P. No.92 of 1979 cannot be taken into account by the trial court for any purpose. In that view of the matter I do not find reason to interfere with the impugned order.
6. But the matter cannot be prolonged. The reason is that the petitioner, be it in the form of a RCP asked for eviction of the respondents in the year, 1979 and it had to be left midway through for the reason of the buildings of the petitioner being exempted from the purview of Act 2 of 1965. In 2012, the petitioner has again asked for eviction of the respondents. The dispute has to be resolved at the earliest.
O.P(C) No.95 of 2013 -: 5 :-
7. Hence the learned Munsiff is directed to expedite the proceeding and issue necessary direction to the Tribunal concerned as well to answer the reference at the earliest. On receipt of the reference, the learned Munsiff shall dispose of the suit as provided under law.
The Original Petition is disposed of with the above direction.
THOMAS P. JOSEPH, JUDGE.
vsv